The case in question was filed on 6/14/2012 — a typical porn copyright shakedown case: Nicoletti moved to subpoena four ISPs to obtain the subscriber information of alleged file-sharers of a pornographic film “Busty construction girls.”¹ Unlike some other states that do not welcome trolls anymore, Michigan is currently a volatile battleground: judges there still rule inconsistently. The judge on this case, Arthur J. Tarnow, was among those who seemingly understood the predatory nature of lawsuits like this one. So, he put the brakes on the scam, issuing a harsh order on 8/28/2012. In particular, he ordered (emphasis is mine):
(1) Plaintiff may serve a subpoena pursuant to Rule 45 of the Federal Rules of Civil Procedure on John Doe #1, IP Address 184.108.40.206, through his or her ISP, Bright House Networks, to obtain the name, address, and Media Access Control address for John Doe #1. Plaintiff is not permitted to seek or obtain the telephone numbers or email addresses of John Doe #1, or to seek or obtain information about any potential John Doe defendant other than John Doe #1. Plaintiff’s counsel is directed to attach a copy of this Order to the subpoena.
(4) Absent any motion to quash or objection, the ISP shall produce the information sought to the Court, not the Plaintiff, ex parte and under seal. Said information will be provided to counsel for Plaintiff at a status conference to be scheduled by the Court.
(5) Plaintiff may only use the information disclosed pursuant to the subpoenas for the purpose of protecting and enforcing Plaintiff’s rights as set forth in the Complaint.
Not a slightest trace of ambiguity: the judge ordered to subpoena the ISP for a single IP address and proceed with naming the defendant.
So, our crook indeed proceeded with the subpoena and obtained the name of John Doe #1 on 10/26/2012: Bright House, accustomed to delivering information directly to trolls, messed up and sent the info to Nicoletti instead of the court chambers. Prior to that, on 10/12/2012, at the day when the time to serve, permitted by the Rule 4(m), elapsed, Nicoletti applied for an extension (until 11/12/2012). I do not see in the docket any order pursuant this request. Nicoletti finally filed the amended complaint on 12/26/2012 (two months after receiving the name from the ISP), and that complaint showed the defendant’s name. It is not clear how the troll got this name: he claimed that he deleted the email that he received from the ISP, and there is no indication of the status conference, during which defendant’s name and address were supposed to be handed over to Nicoletti.
When glancing over the amended complaint, I experienced a sudden strike of déjà vu: next to the defendant’s name we see “and John Does 2-21.” The judge unambiguously severed the other Does, and I do not see any order reversing this decision. Am I blind? Moreover, the amended complaint is exactly the same as the original: the only difference is the defendant’s name, which caused a change in two paragraphs of the text. Compare yourself:
- Original complaint (6/14/2012); list of IP addresses.
- Amended complaint (12/26/2012); list of IP addresses.
Theoretically it is possible that the record of a conference is missing, and during that conference the judge changed his mind, but I really doubt this: a decision like this must be documented. Knowing that the crooks (especially Nicoletti) are both sloppy and impudent, I can thing of the following explanation: seeing the lack of the judge’s attention to the case, as well as the apparent absence of a defendant’s reaction (as the defendant was notified by ISP, he could move to quash the subpoena, pro se or with the help from an attorney), Paul Nicoletti decided to smuggle the initial list in a hope that the judge won’t notice.
If this is the case, then I repeat one more time: troll Nicoletti insulted the judge and attempted to rape the court system. If Judge Tarnow does not admonish the troll (and refer him to the Michigan Bar for investigation), we should expect even more shameless assaults.
Also, I think that Judge Baylson, who presides over the headline-grabbing bellwether trial (same trolls and plaintiffs) in Pennsylvania, must be notified about this event, as I do not believe that Nicoletti acted on his own accord: the Mafioso clan’s “godfather” Keith Lipscomb, if was not the initiator of this particular swindle, at least was certainly informed.
These 20 IP addresses are just an appendix to the amended complaint, this is not a motion for a renewed discovery, so one can say that it is not a big deal, and that these addresses were attached for illustration purposes only. Not so simple. Firstly, I never saw this type of “complaint amendment” before: in other cases, if every Doe except for #1 was severed, all the amended complaints I saw would list just this one defendant. So it is an insult and “f’you” to the judge. Secondly, it may be a “camel’s nose in the tent,” and the crook is testing the limits and indeed intends to move for a new discovery. In any case, this is the first time I see this kind of crookery, and wanted to bring some light to it. There is no limit to how low these guys can stoop.
Doecumb wrote on on 2013/01/11 at 1:09 am:
Kudos to innocentbystander in the state discussions for bringing this to our attention.
Big thanks to Raul for the account.
I do think, even without asking for further discovery, that is a major dirty trick. The amended complaint still wants to re-join the defendants and “find them jointly and severally liable for the direct infringement of each other Defendant.”
And it will not look good to a Doe that RFCExpress says they have been added back to the complaint. Let’s also remember that one extra panicky Doe who settles can be several thousand dollars into the troll pockets. That’s plenty to help with expenses even of a failed amended complaint.
It’s easy to imagine the Nicoletti/Lipscomb gang taking this kind of ruling to the other Does, and ramping up their threats. Troll might say in their demand “SEE, the Judge already found you GUILTY. You, Ms. Doe, would have no chance of winning in court.” Further, through Brighthouse’s unwise delivery of information to the trolls, they have Doe contact info already. Even if they are admonished by the not to use this information, trolls can claim they discovered addresses through other means.
Anyway, the Nicoletti/Lipscomb troll gang would gain extra ammunition for their demands, while having a precedent for joinder being re-considered by a court.
Finally, it should be noted that it is no accident that a sneaky underhanded filing was slipped in during a Holiday week, Regular staff equipped to quickly recognize a sneaky maneuver might be away. History has shown that beneficial timing for troll legal actions is not an innocent coincidence.
Wow. I knew that the trolls read my blog first time in the morning, but did not expect one particular scumbag, Paul Nicoletti, to react so quickly. Look at this motion, filed in less than 24 hours after this post was published:
Amended complaint filed in accident? Sure!
¹ By the way, while the copyright is issued in Patrick Collins’ name, the list of IP addresses states that this copyright belongs to Malibu Media. This is not surprising: such mistakes are inevitable if the same handful of attorneys file hundreds of cases. If it is hard to manage these cases during the filing phase, it is simply impossible to properly litigate them… if they were ever intended to be litigated. Of course, they were not: the sole goal of cases like this is to obtain subscriber addresses and phone numbers for the subsequent acts of extortion.